South African law provides that all determinations relating to a child must be made in accordance with the best interests of the child standard. This standard is set out in the South African Constitution as well as in the Children’s Act of 2005. The determination of a child’s best interests is critical for the mediating of parenting plans.
MEDIATING PARENTING PLANS
During the course of a mediation, the mediator will require each parent to put forward proposals for consideration by the other parent concerning potential arrangements that each of them would like to have in place in their Parenting Plan to regulate the exercise of their responsibilities and rights over the child.
Once all the proposals have been put forward, the parents need to discuss the proposals. They would need to take into account the specific needs of the child, the needs of the family unit, as well as the reasonableness of each proposal.
The legislature’s aim in requiring that the final agreed-upon arrangement is recorded in a written Parenting Plan is so as to prevent post-separation/divorce disputes arising between the parents. Post-dispute conflict can range from conflict on care and contact to conflict pertaining to day-to-day issues. A well-mediated Parenting Plan is one where the parents put in place a mechanism for dealing with potential disputes as and when the disputes arises.
THE PURPOSE OF A PARENTING PLAN
Primarily, the aims of a Parenting Plan is to:
- Regulate the exercise of each parent’s parental responsibilities and rights in respect of a child;
- Facilitate a co-operative parenting relationship between the parents;
- Maintain the relationship between the child and each parent post-divorce;
- Eradicate unnecessary disputes regarding the children;
- Serve the best interests of the child.
A well crafted Parenting Plan has great potential to reduce the level of conflict between parents. This in turn would lower the level of trauma normally experienced by the child in the aftermath of separation and divorce.
Mediation seeks to help parents develop Parenting Plans that are unique and specific to the needs of their families.
According to the findings of the experts, children experience emotional distress when:
- they witness or hear their parents arguing;
- when their parents involve them in the divorce determinations;
- when their parents involve them in adult discussions on the other parent’s fitness to parent;
- where parental alienation is present; and
- where the children are required to act as the go-between for their parents.
THE ROLE OF THE FAMILY MEDIATOR
Ideally, the mediator will during the course of the mediation discussions on Parenting Plans assist the parents to:
- move away from discussions centered solely on their positions and rights;
- discuss parental wants, needs, concerns, and fears;
- consider the needs and best interests of the child;
- hear their child’s perspective on the matters impacting their child in terms of the Parenting Plan; and
- work towards a mutually satisfactory Parenting Plan that will serve the interests of the child and stand the test of time.
A mediator will as far as possible, assist the parents through a process of facilitating constructive dialogue to gain increased clarity of not only theirs but also of the other parent’s perspective as well as that of the child (where appropriate) . One of the end goals for the mediator being to help the parents to recognize the steps that they need to take in order to create a home environment that is free from stress and hostility, is able to serve the child’s best interests (in every respect) and where that child is able to flourish and grow notwithstanding the divorce or separation of his or her parents.